California OAH special education order · January 28, 2020
Order Denying Motion for Stay Put
OAH Case No. 2020010158 · ALJ Cararea Lucier
OAH denied Student's stay put motion because Trivium's case involved only its right to assess Student, and Student did not allege any current dispute over placement.
This case went to decision
Trivium Charter School v. Student: Trivium Charter School may reassess a tenth grader without parent consent; its request to compel medical releases is denied. (2020)
Summary
Student asked for stay put in her prehearing conference statement, and the parties argued the request at the January 24, 2020 prehearing conference. Trivium opposed, arguing that its case concerned only its right to assess Student and that there was no dispute about placement. The ALJ agreed that Student's current program and services were not at issue and that Student had not alleged a placement dispute, so the motion was denied. The ALJ said Student could file a new request that explains the dispute and the specific stay put terms she wants.
Why it matters
A stay put request needs a real dispute over the student's placement. In a district-filed assessment case, parents should spell out the placement dispute and the exact stay put terms they want, and raising it in a prehearing conference statement may not be enough.
Key authority cited
- 20 U.S.C. § 1415(j)
- 34 C.F.R. § 300.518(a)
- Ed. Code, § 56505, subd. (d)
- Cal. Code Regs., tit. 5, § 3042, subd. (a)
- Thomas v. Cincinnati Bd. of Educ. (6th Cir. 1990) 918 F.2d 618
Topics
Full text of the order
Published text of the OAH order. Page headers and numbers from the original PDF have been dropped.
BEFORE THE
OFFICE OF ADMINISTRATIVE HEARINGS
STATE OF CALIFORNIA
IN THE MATTER OF:
TRIVIUM CHARTER SCHOOL,
v.
PARENT ON BEHALF OF STUDENT.
OAH CASE NUMBER 2020010158
ORDER DENYING MOTION FOR STAY PUT
JANUARY 28, 2020
On January 20, 2020, Student filed a motion for stay put within her Prehearing Conference Statement. On January 24, 2020, at the Prehearing Conference the parties presented oral arguments with regard to Student’s motion. Trivium Charter School opposed the motion on the ground that the pending matter involves the sole issue of Trivium’s right to assess Student, and there is no current dispute regarding placement.
APPLICABLE LAW
Until due process hearing procedures are complete, a special education student is entitled to remain in his or her current educational placement, unless the parties agree otherwise. (20 U.S.C. § 1415(j); 34 C.F.R. § 300.518(a) (2006); Ed. Code, § 56505 subd. (d).)
This is referred to as “stay put.” For purposes of stay put, the current educational placement is typically the last agreed upon and implemented individualized educational program, called IEP, placement prior to the dispute arising. (Thomas v. Cincinnati Bd. of Educ. (6th Cir. 1990) 918 F.2d 618, 625.)
In California, “specific educational placement” is defined as “that unique combination of facilities, personnel, location or equipment necessary to provide instructional services to an individual with exceptional needs,” as specified in the IEP.
(Cal. Code Regs. tit. 5, § 3042, subd. (a).)
DISCUSSION
Trivium established that Student’s current program and services are not at issue in the pending matter. Here, Student has not alleged that a dispute exists with respect to Student’s placement. If a dispute exists, Student may file a request for stay put with more specificity as to the nature of the dispute and the terms of stay put. The motion for stay put is denied.
IT IS SO ORDERED.
DATED: January 28, 2020 Cararea Lucier Administrative Law Judge Office of Administrative Hearings